Court: FCC can't force Comcast to carry Tennis Channel in cable bundle

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FCC regulations bar cable providers from "unreasonably" discriminating against unaffiliated TV channels. The commission ruled against Comcast in a 3-2 vote, with the Republican commissioners dissenting.

But the D.C. Circuit Court of Appeals concluded unanimously that the agency "failed to identify adequate evidence of unlawful discrimination."

Judge Stephen Williams, writing for the court, noted that, according to Comcast, no customer had ever complained that the Tennis Channel should be in a more affordable tier.

"Without showing any benefit for Comcast from incurring the additional fees for assigning Tennis a more advantageous tier, the Commission has not provided evidence that Comcast discriminated against Tennis on the basis of affiliation," Williams wrote.

Judges Brett Kavanaugh and Harry Edwards filed concurring opinions.

In a statement, Comcast said it was pleased with the ruling.

”Tennis Channel received exactly the carriage it bargained for and agreed to," the company said. "Comcast’s decision to carry Tennis Channel was the product of legitimate business considerations, not affiliation. As Comcast maintained from the start, those facts did not and could not support the finding of discrimination necessary to sustain a program carriage violation.”

The FCC declined to comment.

The court's opinion did not address Comcast's controversial claim that the FCC action violated its free-speech rights. But Kavanaugh endorsed Comcast's First Amendment argument in his concurring opinion.

"The FCC cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the Government can tell Amazon or Politics and Prose or Barnes & Noble what books to sell; or tell the Wall Street Journal or Politico or the Drudge Report what columns to carry; or tell the MLB Network or ESPN or CBS what games to show; or tell SCOTUSblog or How Appealing or The Volokh Conspiracy what legal briefs to feature," Kavanaugh wrote.

— This story was updated at 1:12 p.m.

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